News Feature

Prescription for Termination

Medical marijuana laws conflict with employers’ drug testing policies

By Barron Jones

Over the past decade, use of medical marijuana has gained increasing support from the American public. Through ballot measures and legislative actions, citizens of New Mexico and 17 states plus the District of Columbia can obtain a marijuana prescription to ease mental and physical pain and suffering. However, since many public and private sector employers routinely test for marijuana and have enacted strict policies banning its use, medical marijuana patients may have to choose an alternative treatment or face being fired.

One affected patient is Iraq War veteran Augustine Stanley. He lost his job as a security supervisor at the Bernalillo County Metropolitan Detention Center (MDC) after testing positive for THC or Tetrahydrocannabinol (the stuff that makes weed weed). Stanley was diagnosed with post-traumatic stress disorder (PTSD) in 2011—six years after returning from Iraq. He took the pills Veterans' Affairs doctors prescribed to treat the disorder for a year and half, but he said they made his depression worse. So he decided to follow the advice of a friend also living with PTSD, and he enrolled in the medical marijuana program.

Since smoking medical marijuana with a prescription is legal under state law, Maestas said he would like to see employers embrace a more compassionate stance.

“The program has done nothing for me but wonders. It's given me my life back; it has given me my family back. I can wake up in the morning and do all those things I used to enjoy prior to being put on all those medications that made me like a zombie,” Stanley said.

Last week Stanley joined Congresswoman Michelle Lujan Grisham (D), State Representative Antonio “Moe” Maestas (D) and medical marijuana advocates to kick off a campaign they hope will make medical marijuana more accessible to those it might help. The Freedom To Choose campaign hopes to challenge federal prohibition, eradicate employer discrimination and mitigate cultural stigmas associated with marijuana use. Using education and civic engagement as a tool, the campaign plans to focus on educating the public—including those who do hiring and firing—that medical marijuana is a “legitimate health care choice” for treating PTSD and other ailments.

Like Stanley, Valerie Romero alleges she was fired because of her participation in the medical marijuana program. But unlike Stanley, Romero will have her day in court.

Drug Policy Alliance New Mexico Policy Coordinator Jessica Gelay said the jail's decision to fire Stanley for using medical marijuana was “unfair” and has had “life-changing consequences” for him and his family. She said this incident also illustrates the type of discrimination veterans—and others who experience severe trauma—face while trying to live a normal life. “This campaign has national implications—as hundreds of thousands of veterans return home from Iraq and Afghanistan with PTSD,” Gelay said. “We hope that this campaign will encourage other states to ensure that their veterans receive the best care possible.”

Rep. Maestas, one of the original supporters of the 2007 passage of New Mexico's medical marijuana law, personally understands the benefits of using marijuana to treat invisible war wounds. Maestas said the medical cannabis program worked wonders, helping to create stability for his cousin, an Iraq War veteran who once patrolled his own home—armed with weapons and looking for enemies that didn't exist. Since smoking medical marijuana with a prescription is legal under state law, Maestas said he would like to see employers embrace a more compassionate stance. “We ask all employers to respect state law, and we asked that all medical marijuana patients be protected from employment discrimination,” Maestas said.

Bernalillo County spokesperson Tia Bland said the county's substance abuse policy bans the use of certain drugs that are illegal under state or federal law. “While New Mexico law allows marijuana to be prescribed by a physician in some circumstances and precludes prosecution of a qualified patient under state law, the drug remains a Schedule I Controlled Substance under federal law, and thus its use by employees remains contrary to county policy,” Bland said. “Also, for county public safety employees who are members of a union, all current collective bargaining agreements prohibit the use of marijuana, and said unions have not sought to negotiate any changes to this prohibition.”

MDC spokeperson Nataura Powdrell added that although there is a conflict between state and federal law, “all the relevant case law that we have found is consistent in holding public safety employees to a higher standard in not allowing medical marijuana use.”

For 13 years, Albuquerque-based staffing specialist Matt Davis has been challenged with the nearly impossible task of placing workers who use medical marijuana. It's a difficult assignment, he said, because most workplace drug policies apply to medical marijuana like any other medication that could potentially affect one's ability to safely perform their assigned duties. Davis said many employers won't consider hiring a medical marijuana patient because it generates safety concerns for all involved. “If it is a safety sensitive job and you have to have medical marijuana, then you shouldn't be doing that safety sensitive job,” said Davis, and he admits the adjective “safety sensitive” can be applied to almost any job.

In August 2012, a former New Mexico state employee filed a wrongful termination lawsuit against her former employer, the State Personnel Office. Like Stanley, Valerie Romero alleges she was fired because of her participation in the medical marijuana program. But unlike Stanley, Romero will have her day in court. Jury selection for the wrongful termination trial starts in spring 2014, and both supporters and opponents of the law will be watching the case closely. The outcome of that case has the potential to set legal precedent and provide a blueprint for patients and employers—from both the public and private sectors—to follow.